Greater restrictions should be introduced on the use of rape complainants’ personal records and evidence relating to their sexual behaviour to avoid rape myths contaminating trials in England and Wales, a government-commissioned review has said.
The Law Commission suggested that legislative change was necessary to address the decline in rape prosecution and conviction rates since 2016, warning that “pernicious” myths and misconceptions about rape and sexual assaults “filter through the breadth and depth of the criminal justice system”.
Campaigners have been warning for years that intrusive demands for rape complainants’ private information during criminal investigations discourage victims from coming forward and, when used in court, can affect the outcomes of trials.
A government amendment to the victims and prisoners bill, announced last week, which it said would halt such practices by police was dismissed by campaigners as merely restating the existing law.
In a long-awaited consultation, published on Tuesday, the Law Commission said there should be a bespoke set of laws for sexual offence cases, governing access to all complainants’ personal records – including therapy notes – by police and lawyers, and their use in trials.
The review proposes introducing a requirement for judicial permission, with judges deciding whether the evidence is sufficiently relevant and in the interests of justice to override the complainant’s right to privacy.
The commission’s proposal is based on the Canadian model, which it also adapts in relation to evidence on the complainant’s sexual behaviour, which it says the judge should allow only if it is of genuine value and does not risk prejudice. It recommends that a similar test is applied to evidence relating to any compensation claim made, as this can be used “to undermine the complainant’s credibility and to suggest that their allegation is false and for the purpose of financial gain during cross-examination”.
Campaigners welcomed the commission’s recommendations but said they had been too long coming.
Andrea Simon, the director of the End Violence Against Women Coalition, said rather than delivering justice and support, survivors and advocates have long said that the criminal justice system is a site of harm, which retraumatises victims and reinforces victim-blaming at every turn. These recommendations are a hugely important step in transforming this and building a fairer and more equal society.
“Despite a government apology and countless commitments to transforming the system, charging and conviction rates remain alarmingly low. All of these issues are rooted in sexist stereotypes and rape myths.
“If the government is serious about ending violence against women and girls, it is imperative that it acts on the outcome of this consultation. This cannot just be another review that goes nowhere.”
The Law Commission also proposed that complainants should have the right to exclude the public – and all members of the press bar one – while giving evidence.
Additionally, the consultation asks for views on whether expert evidence should be used to educate jurors in relation to, for example, victims freezing during an assault, or delayed reporting to the police; and whether there should be rape trials without juries, as planned in Scotland, although these were not endorsed by the commission.
Jayne Butler, the CEO of Rape Crisis England & Wales, said: “The victims and prisoners bill, which is currently before parliament, is an excellent opportunity to address some of the Law Commission’s proposals sooner rather than later. Real and meaningful change for survivors is urgent and it’s essential that we don’t let opportunities for such change pass us by.”
Harriet Bland, a lawyer at the Centre for Women’s Justice, said: “We will be making detailed submissions on the proposals during the consultation period but would strongly encourage the government to act on calls for change now.”
The consultation will run until 29 September.
